Complainant

Respondent

Parties

Thomas  Reaney

Starrus Eco Holdings Limited t/a Panda Waste Management Solutions

Representatives

Diarmuid Long SIPTU

Mr Darach McNamara BL instructed by Rory Muldowney

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054386-001

06/01/2023

The Complainant worked as truck driver in the Respondent waste management company from 14 February 2014 until his dismissal on grounds of gross misconduct on 29 July 2022. The alleged gross misconduct was that of engaging in aggressive behaviour and physical assault of the site manager. The Complainant refutes any allegation of assault and further claims that the procedures adopted by the Respondent were fundamentally flawed, in that he was not informed in advance of the investigation of the nature of the allegations nor did the Respondent interview a witness whom the Complainant claimed, had witnessed the interaction between the site manager and himself. The Complainant is seeking re-instatement.

The Respondent submits the dismissal was fair in all the circumstances and argues that reinstatement should never be considered as realistic redress should there be a finding of unfair dismissal due to a serious breakdown of trust and confidence arising from the alleged incident.

Summary of the Evidence of Louise Demir, Site Manager.

On the morning of 17 May 2022, the witness was discussing truck-driver availability with colleagues Tommy McLaughlin, Supervisor, Damien Madden Schedule Manager in the office opposite the canteen. The Complainant walked past them to the men’s toilet, later emerging agitated because there seemed to be an issue with the water. The Complainant began shouting, using explicit language, and saying amongst other things; “what’s wrong with the fucking water,” and “you don’t know fucking anything”. When she attempted to calm him, the witness said the Complainant barged into her, making physical contact with her chest area, causing her to lose balance and stumble a little. She said she was completely shocked by this. The Complainant went back into the toilet and when he re-emerged, she asked the Complainant if he was going to push her again and she said the Complainant replied, “I will if you don’t get the fuck out of my way”. The witness said she was left shaken, tearful, and emotionally distressed, ultimately leaving work to avoid further confrontation. The witness accepted in cross-examination that explicit language was common enough on site and she would have engaged in such language occasionally.

Summary of the Evidence of Tommy McLaughlin, Supervisor.

The witness was chatting with Damien Madden in the office opposite the canteen and heard the Complainant shouting in a loud aggressive manner about an issue with hot water in the toilet. He heard the Complainant shout words to the effect that she (Ms Demir) “could not do anything”. He witnessed the Complainant knocking Ms Demir with his body and “nearly knocking her to the ground”. He said he saw Ms Demir stumble and hold on to a table so that she was not knocked to the ground. He gave evidence of receiving an email from the HR department later that day, after the complaint had been reported, instructing him to tell the Complainant that he was to be suspended on full pay pending investigation of the incident. He said that he told the Complainant that day that he was being suspended with full pay because of the earlier incident.

Summary of the Evidence of Damien Madden, Schedule Manager:

Mr Madden said he had no line of vision of the incident from his seat in the office on the day in question, but he did hear the interaction between the Complainant and Mr Madden. He saw a glimpse of a person going  into the adjoining toilet, which he now knows to have been the Complainant, and hearing him on re-emerging say, “Management is a fucking joke”. The tone of the voice was loud and aggressive.  He heard Ms Demir say to the Complainant “What’s the issue can I help you”. After Ms Demir had asked the Complainant whether he (the Complainant) would push her again he heard the Complainant reply “I will if you don’t get the fuck out of my way”.

Summary of the Evidence of Nicholas McGrath:

The witness said he was Head of Security at the Respondent company and had been asked by senior management to establish the facts and submit his report to the HR Department. He also verified the letter of 25 May 2022 he sent to the Complainant as being an invitation to an investigative meeting. It listed the matter under investigation as being allegations of:

·         Assault

·         Aggressive Behaviour

·         Insulting Behaviour

·         Gross Insubordination

·         Serious Breach of Confidence.

The letter gave details of the meeting and invited the Complainant to bring a representative. The witness testified to his report as exhibited. His concluding sentence in the report was “Based on the facts gathered, reports and statements I find this complaint is well founded.”

In cross-examination the witness accepted that his letter of invitation of 25 May 2022 did not refer specifically to the person involved in the incident, nor specific details of the incident itself, but rather to give a somewhat general description of the allegations. The witness also accepted that he did not supply the Complainant with the statements from the Respondent witnesses. When asked as to why he did not bring the matter to the attention of the Gardai, the witness responded that it would not have merited a Garda investigation unless Ms Demir herself had made the complaint to them.

Summary of the evidence of Ms Carol McGovern, Head of Customer Service Ireland.

The witness conducted the appeal on behalf of the Respondent where she confirmed the disciplinary decision to dismiss the Complainant. She testified to the authenticity of the minutes of the appeal hearing the letter and her subsequent decision.  She noted, in correspondence of 2 September 2022, between the Complainant’s representative and herself that there was reference to an unidentified colleague whom the Complainant now said had witnessed the interaction between Ms Demir and the Complainant. The Complainant did not identify any such witness all the way through the investigation and disciplinary process. A witness Mr A was identified at the appeal hearing.  The witness allowed cross-examination of witnesses Ms Demir and Mr McLaughlin during the appeal hearing, but nothing further was disclosed that might influence her ultimate decision.  

In cross examination the witness said that the appeal was her first appeal, but she and other members of management had training on handling such meetings. She accepted that the appeal hearing was the first time that the Complainants’ representative had the opportunity to cross examine the Respondent’s witnesses, but she pointed out that the Complainant had been given the opportunity to call any witness at the disciplinary hearing but did not take up the offer. The witness said that she did not consider the long service of the Complainant as mitigation because she considered the seriousness of actions of gross misconduct of the Complainant to be beyond any mitigatory consideration.

Legal Argument of the Respondent:  

The Respondent argues that the Complainant’s dismissal followed a fair and thorough investigation, necessitated by serious allegations, including a physical assault on Ms Demir. Contrary to the Complainant’s claims, the investigation complied with both procedural and substantive fairness.

The Respondent contends the Complainant’s criticisms of Mr McGrath’s questioning method be rejected, as he was conducting a legitimate fact-finding exercise. The Respondent argues the Complainant was properly informed of the allegations from the outset—initially during his suspension,  later in writing and in person during the investigation meeting. Regarding the complainant's right to access the investigation report and witness statements only after the investigation was completed, the Respondent maintains this was procedurally correct. The Respondent maintains employees are not entitled to full disciplinary rights at the investigation stage. It argues that this principle is confirmed in Injunctions:Law and Practice: Kirwan, Injunctions: Law and Practice, (3rd ed, Round Hall, 2020) at paragraph 9-311. Where it is stated:

“In the normal course, an investigation will precede a disciplinary hearing. As investigations do not of themselves amount to a punishment, it would be unusual for an investigation to be enjoined by the courts.”

And further at paragraph 9-291 where it states:

“The extent to which natural justice is engaged at the investigation stage has been considered on a number of occasions by the courts. As is evident from the foregoing review, in short, it is not, in the normal course, engaged when a pure investigation or fact gathering exercise is being carried out but may be engaged if something more than a pure fact gathering exercise is involved. If there is a case for intervention by the court that will usually only be where there is real risk that a flawed process cannot be corrected and an associated risk of irreparable harm.”

The Respondent refutes the Complainant’s assertion that he was unaware of the allegations until the disciplinary hearing letter. Similarly, the Respondent refutes the claim that the Complainant was denied a chance to respond, which it argues, is contradicted by evidence showing he was informed and given opportunities to respond, including thorough cross-examination rights at the appeal hearing.

The Respondent refutes the Complainant’s assertion that the reasons for dismissal were unclear, noting that the dismissal letter provided clear and numbered grounds for the decision. The Complainant also contends that an additional witness—described as “the only witness present in the room”—should have been interviewed during the investigation. However, the Respondent emphasises that Mr. A was mentioned for the first time during the appeal hearing and had not been identified at any prior stage. Furthermore, the Respondent asserts that the incident of assault and battery occurred in the canteen, where Ms. Demir was present. Although Mr. McLaughlin was not physically in the canteen, he had a direct line of sight and observed the Complainant approach and ultimately assault Ms. Demir. Both Ms. Demir and Mr. McLaughlin confirm witnessing the Complainant's aggressive behaviour, as well as hearing vulgar language and verbal abuse directed at Ms Demir.

While the Complainant admitted to verbal abuse and foul language, he denied the assault. The Respondent argues the consistent testimony of other witnesses led Mr McGrath to reasonably find the assault occurred. Even if the assault was disregarded, the admitted conduct alone justified dismissal. This principle is supported in Redmond on Dismissal Law:

“Where an employee admits to dishonest conduct self-evidently it will not be necessary for an employer to embark upon the sort of investigation that would be necessary if reasonable grounds were needed to confirm its suspicions.”(Ryan, Redmond on Dismissal Law, (3rd edn, Bloomsbury, 2017) at paragraph 16.16.

The Respondent submits that this is also reflected in the Labour Court’s decision in Kipla v Dunnes Stores MND201 where the Court stated:

“For example, it is accepted that where an employee has freely made a clear and unequivocal admission of wrongdoing, the employer is not required to conduct as extensive an investigation into the allegations against the employee as it would in circumstances where employee has, at all times, maintained his innocence (Royal Society for the Protection of Birds v Croucher [1984] ICR 604).”

The Respondent maintains that dismissal was proportionate. The Complainant’s admitted and proven misconduct—aggression, verbal abuse, insubordination, and assault of a female superior—justified the sanction, even in the absence of physical assault.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.

Summary of the Evidence of the Complainant:

The Complainant was a truck driver for 8 to 10 years with no prior disciplinary action taken against him. He had been a SIPTU shop steward and for the last 6 or 7 years he didn’t like the “carry on” of management. He had what he described as a “rough and tumble” relationship with management and he felt Ms Demir took it personally. He said that he had received no statements about the specifics of the complaint and was somewhat mystified to find himself suspended.

Describing events on 17 May 2022, he said he had used the toilet and felt utterly frustrated that there was no water available in the washroom. He categorically denied that he had assaulted, or in any way, touched Ms Demir when passing her. He asked her to get out of the way and acknowledged he may have used explicit language, “but not in a vulgar tone”. He said that “deep down, she wanted to get rid of me” and that this was behind the complaint.

During cross-examination, it was put to the Complainant that, in reference to the investigative report, he had responded to a comment by Ms Demir—asking if he was going to push her again—by saying, “I will if you don’t get the fuck out of my way.” It was pointed out to the Complainant that this account was subsequently corroborated by Mr Damien Madden, whom the Complainant previously stated at the hearing was a person he could trust. The Complainant accepted that he had made this statement but reiterated that he had not touched Ms Demir.

It was put to the Complainant that it was inconceivable that when he received notice of his suspension from Mr McLaughlin, he had no clue why he was being suspended. Further, it was put to the Complainant whether it was credible for the Complainant, as an experienced union shop steward to “sit on his hands” for a number of months, and not communicate with the Respondent. The Complainant submits it was not for him to enquire about his suspension but rather the onus was on the Respondent to disclose to him the full reasons for his suspension. 

Complainant’s Legal Argument:

The Complainant submits the Respondent was obliged to utilise the general guidance contained in SI 146/2000 and adopt procedures that were fair and reasonable. The Complainant argues there has been a complete disregard for fairness in the manner the Respondent dismissed the Complainant. The Complainant submits that a reasonable employer, as required by section 6(7) of the Unfair Dismissals Act, as amended, (“the Act”), coupled with its own procedures should follow the directions given in the code, to ensure that disciplinary matters are handled in accordance with the principles of natural justice and fairness. The Complainant argues that this has not happened in this instant case as he was denied access to the written complaints throughout the investigation process. The Respondent went straight to dismissal without considering a lesser sanction.

The Complainant asserts the test for reasonableness was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly [2015] 26 E.L.R. 229. Noonan J. held that “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. The question here is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “. The Complainant submits that the Respondent's actions were not reasonable because the Respondent failed to discharge the burden of proof during the investigation process.

 The Complainant further cites the High Court case of Frizelle v New Ross Credit Union [1997] IEHC 137 where the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct were set outby Samuel J, as follows:

 “Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct:

1.       The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.        Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.       The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.       The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5.        The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.”

The Complainant contends that the Respondent failed to initiate a bona fide complaint against him and did not provide him with a copy of the allegations. The Complainant maintains he was not interviewed but was instead subjected to leading, presumptive, and trick questions, which undermined the fairness of the investigative process. No reasons were forwarded by the Respondent to show that any meaningful consideration was undertaken, nor was a lesser sanction or the potential impact on the Complainant considered in the dismissal letter.

The principle of proportionality, as outlined in Frizelle, requires that “The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered…”. The Complainant argues the Respondent failed to apply this principle, as evidenced by the investigation, the dismissal letter, and the appeal process.

The Complainant also cites Panasov v Pottle Pig Farm UDD175, where the Labour Court held: “The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.”

The Complainant argues that a proper investigation was not carried out. He was not shown the complaints in advance of the investigation hearing, the investigator did not interview the Respondent’s witnesses, and instead relied on HR-gathered statements without testing their validity. Key witnesses were not identified, and the balance of probabilities was not adequately considered. Further, the Complainant contends the disciplinary chair failed to provide him with a proper disciplinary hearing and instead conducted a re-investigation. No reasoning was given for the dismissal. The appeal hearing similarly failed to engage with the substantive grounds raised by the Complainant and neglected to consider his defence. Consequently, the outcome of the appeal fell outside the range of reasonable responses, rendering the dismissal unfair.

The Complainant submits that Starrus Eco Holdings Limited v. Ben Madichie UD/21/58, is a strikingly similar case to the instant one, involving the same employer and a claim of unfair dismissal following an allegation of assault. The Complainant contends the same witness, Tommy McLaughlin, featured in both Cases. The Complainant asserts that in Madichie, the tribunal found that the dismissal was unfair due to procedural failings, with the employer neglecting its own disciplinary procedures and denying the employee a fair opportunity to respond. The Tribunal emphasised: “The investigation and disciplinary processes lacked the necessary fairness and transparency, which are fundamental to upholding the principles of natural justice.” The Complainant argues that this reasoning is directly applicable to the instant case, where similar procedural shortcomings were evident: inadequate notice of the allegations, no opportunity to respond prior to the disciplinary hearing, and a conflation of the investigation and disciplinary stages. The Complainant maintains he was subjected to a flawed process that compromised his rights and the fairness of the proceedings, culminating in an unjust dismissal.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.

There is no dispute regarding the fact of dismissal. The Complainant’s case centres around his argument that the Respondent acted unreasonably in dismissing him: (1) In that there were deficiencies in procedures and (2) That that he did not assault the site manager on the relevant day, although he accepted that he may have used profane language day on the day, but that in all circumstances the decision to dismiss him was  disproportionate when mitigating factors are taken into account.

Section 6 of the Unfair Dismissals Act, as amended, (“the Act”) states:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(7) of the 1977 Act provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act."

The High Court has further echoed and reinforced this line of reasoning in Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, in which Noonan J remarked:

"Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned."

It clearly is not my role to determine whether the Complainant was guilty of the accusations laid against him but instead to determine whether the decision by the Respondent to dismiss him was reasonable and proportionate, based on the information available to it at the material time, and, furthermore, that proper, fair, and impartial procedures were adopted by the Respondent when carrying out the dismissal. 

Procedures:

I am conscious that procedural flaws on their own do not necessarily render a dismissal unfair, and the robustness of an employer’s procedural approach may be secondary to the substantive merits of the particular case. In this instance, it is essential to evaluate any alleged flaws within the specific context of the employment and the seriousness of the Complainant’s conduct.

The Complainant gave evidence that on the day of the incident in question he was summoned by Mr McLaughlin to be told that he was being suspended on full pay. Mr McLaughlin’s evidence was that he told the Complaint the reason being the incident that happened earlier that day.  The Complainant alleges that he was not told the reason for his suspension and in cross-examination on this point he said that he stayed at home from 17 May until 1 June 2022, puzzled as to why he was suspended. The Complainant added that it was the Respondent’s obligation to advise him of the reason for his suspension. I found the evidence of the Complainant not to be credible on this point. The Complainant had been a union shop steward and it is not plausible that a person in such a position would not have enquired further, either on the day of his suspension or on the following day, as to why he was suspended. Furthermore, there is no record at the investigation meeting of the Complainant raising this procedural point. I am satisfied that the Complainant had been aware of the reason for his suspension on the day he was suspended.

The Complainant referred to the general guidance in S.I. 146 of 2000 regarding investigations where details of any allegations or complaints should be  put to the employee concerned and  that the employee is allowed to respond fully to any such allegations or complaints. A textbook investigation would have required Mr McGrath to  supply the Complainant in advance with the statements of the Respondent witnesses. However, in the context of an alleged serious single incident, I conclude that the allegation as contained in Ms Demir’s complaint, and corroborated by the other witnesses, were put to the Complainant in full at the investigation meeting, and according to the minutes, the Complainant was allowed the opportunity to respond at the meeting where he had availed of representation. I am not satisfied, given the circumstances described, that the Complainant’s failure to receive witness statements constituted a significant procedural flaw which breached the general principle of fairness as outlined in S.I. 146 of 2000. I come to this conclusion notwithstanding the Respondent’s submission, which cited established authority supporting the principle that employees are not entitled to full disciplinary rights at the investigation stage.

The Complainant also referred to the juxtaposition of the investigatory stage with the disciplinary stage, during which he was invited to call witnesses at the disciplinary meeting—an opportunity he declined—and at the appeal stage, where his union representative was permitted to cross-examine Ms Demir and Mr McLaughlin. I am not persuaded that this investigatory element placed the Complainant at a disadvantage—quite the opposite, in fact. It afforded him the opportunity to further elaborate on his position and to reveal any potential inconsistencies that might prompt the Respondent to re-examine its stance beyond Mr McGrath’s report.

The Complainant referred to a Mr A, whom the Complainant alleged was present in the canteen on 17 May, and who was not called by the Respondent. The Complainant identified this witness at the appeal hearing, despite requests from Ms McGovern to disclose the identity beforehand, when he had been referred to in previous appeal-related correspondence. The Complainant stated that he had not referred to this witness at the disciplinary stage as he wished to protect him from any potential sanction by the company. Furthermore, he asserted that it was the Respondent’s responsibility to identify any relevant witnesses. I find the Complainant’s position on this matter to be implausible. The Complainant was aware in advance of the seriousness of the allegations against him and had every opportunity to refer to this witness during the investigatory and disciplinary stages but chose not to do so.

The Complainant referred to a previous decision of the Employment Appeals Tribunal (EAT) in the matter of Ben Madichie, which also involved the Respondent. The Complainant contended that the circumstances in that case were, in essence, “on all fours” with the present matter—namely, a case where the complainant had been accused of assault, and the Tribunal ultimately found the dismissal to be unfair. That decision was appealed by the Respondent to the Labour Court, which upheld the Tribunal’s findings. However, I do not accept the Complainant’s comparative analysis. Firstly, the assault alleged in Ben Madichie was qualitatively different, involving a hand being grabbed during a heated exchange between the complainant and a member of management. The complainant also immediately admitted the physical contact as described.  While the complainant faced disciplinary action for using explicit language, as well as the assault, the manager involved was not investigated at all. The Court found this to be an inconsistent approach on the part of the Respondent. In contrast, in the present case, there is no evidence to suggest that Ms Demir was involved in any form of heated exchange, nor is there evidence to suggest that her conduct mirrored that of management in Ben Madichie. Secondly, the disciplinary invitation issued to the complainant in Ben Madichie made no mention of any risk to the complainant’s continued employment. In the present case, however, the Complainant was expressly advised that dismissal was a potential outcome. Thirdly, no representation was permitted to the complainant in Ben Madichie, whereas in the instant case, the Complainant was afforded full representation throughout the process.

It is clear to me that the procedural inconsistencies identified by both the EAT and the Labour Court in Ben Madichie amounted to fundamental procedural flaws that inevitably led to a finding of unfair dismissal. However, I am mindful that procedural deficiencies, in and of themselves, do not automatically render a dismissal unfair. In the present case, any alleged procedural shortcomings are, in my view, minimal, technical in nature, and insufficient to undermine the overall fairness of the process.

For the reasons outlined, I conclude that the Complainant was afforded a fair investigative and disciplinary process.

Substantive Issue – Proportionality:

As referred to in Reilly, it clearly is not my role to determine whether the Complainant was guilty of the accusations laid against him but instead to determine whether the decision by the Respondent to dismiss him was reasonable and proportionate. However, I can refer to the evidence the Complainant gave in deciding whether the Respondent had come to reasonable decision to dismiss him. The Complainant denied he had assaulted Ms Demir. However, I found his evidence pertaining to the incident to be inconsistent in the main. He accepted that he may have used a loud voice and profane language but denied pushing against Ms Demir with his body to the extent that she stumbled and had to grab the edge of the table. On a telling point in cross-examination, he admitted, that in response to Ms Demir’s question as to whether he might push her again he stated, “I will if you don’t get the fuck out of my way.” The Complainant denied he had made such statement at the investigative meeting, which was contrary to what he admitted at the hearing. Even though the Complainant denied he had pushed Ms Demir, this statement and the overall inconsistencies in his evidence suggest otherwise.

The determination of the investigative process was that an assault had taken place accompanied by unacceptable behaviour. After considering the evidence and submissions in this case, I am satisfied the determination led the Respondent to reasonably believe that the behaviour of the complainant constituted gross misconduct. Therefore, I deem the decision to dismiss as rational and proportionate and falling within the spectrum of reasonable actions expected from an employer, consistent with the guidance from the High Court in Governor and Company of the Bank of Ireland v James Reilly. Consequently, I find no unfairness in the dismissal of the Complainant.

For the reasons outlined above, I decide the Complainant was not unfairly dismissed.

Dismissal, Gross Misconduct, Proportionality, Procedural Fairness.